PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-9

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

BRANDON LEON BASHAM,

Defendant – Appellant.

Appeal from the United States District Court for the District of 

South Carolina, at Florence. Joseph F. Anderson, Jr., Senior 

District Judge. (4:02-cr-00992-JFA-2; 4:11-cv-70079-JFA)

Argued: March 25, 2015 Decided: June 15, 2015

Before TRAXLER, Chief Judge, and KING and AGEE, Circuit Judges.

Affirmed by published opinion. Judge King wrote the opinion, in 

which Chief Judge Traxler and Judge Agee joined.

ARGUED: Michael L. Burke, OFFICE OF THE FEDERAL PUBLIC DEFENDER, 

Phoenix, Arizona, for Appellant. Thomas Ernest Booth, UNITED 

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. 

ON BRIEF: Jon M. Sands, Federal Public Defender, Sarah Stone, 

Assistant Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC 

DEFENDER, Phoenix, Arizona, for Appellant. William N. Nettles, 

United States Attorney, Robert F. Daley, Jr., Assistant United 

States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia, 

South Carolina; Leslie R. Caldwell, Assistant Attorney General, 

Sung-Hee Suh, Deputy Assistant Attorney General, UNITED STATES 

DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. 
2

KING, Circuit Judge:

In November 2002, Brandon Leon Basham and Chadrick Evan 

Fulks engaged in a seventeen-day multistate crime spree, for 

which they were both prosecuted. Basham was convicted in the 

District of South Carolina of multiple crimes and sentenced to 

death for two of them, carjacking resulting in death, in 

contravention of 18 U.S.C. § 2119(3), and kidnapping resulting 

in death, as proscribed by 18 U.S.C. § 1201. After we upheld 

Basham’s convictions and death sentences on direct appeal, see

United States v. Basham, 561 F.3d 302 (4th Cir. 2009), cert. 

denied, 560 U.S. 938 (2010), he moved for habeas corpus relief 

pursuant to 28 U.S.C. § 2255. By its opinion of June 5, 2013, 

the district court denied Basham’s § 2255 motion. See United 

States v. Basham, No. 4:02–cr–00992 (D.S.C. June 5, 2013), ECF 

No. 1577 (the “Opinion”). The court subsequently denied 

Basham’s motion to alter or amend the judgment, made under 

Federal Rule of Civil Procedure 59(e), by way of its August 21, 

2013 order. See United States v. Basham, No. 4:02–cr–00992 

(D.S.C. Aug. 21, 2013), ECF No. 1583 (the “Reconsideration 

Order”).1 Basham now appeals from those decisions. As explained 

 1 The district court’s unpublished Opinion is found at J.A. 

177-374, and its Reconsideration Order is found at J.A. 375-82. 

(Citations herein to “J.A. __” refer to the contents of the 

Joint Appendix filed by the parties in this appeal.)
3

below, we reject Basham’s assignments of error and affirm the 

judgment of the district court.

I.

A.

Our 2009 opinion disposing of Basham’s direct appeal, 

authored by our distinguished former Chief Judge Karen Williams,

detailed the pertinent facts of Basham’s 2002 crime spree as 

follows:

In 2002, Basham, a lifelong Kentucky resident, 

was serving the final years of a felony forgery 

conviction sentence at the Hopkins County Detention 

Center in Kentucky. In October of that year, Chadrick 

Evan Fulks became Basham’s new cellmate. In early 

November, Fulks was charged with an additional (and 

serious) state offense, first degree abuse of a child 

aged twelve years or younger. On November 4, 2002, 

Basham and Fulks escaped the detention center together 

by scaling a wall in the recreation area and leaving 

the area on foot.

By the evening of November 5, Basham and Fulks 

reached the home of James Hawkins in nearby Hanson, 

Kentucky. Basham approached the dwelling, knocked on 

the door, and asked to use the telephone. Basham told 

Hawkins that his car had broken down and, after Basham 

made two calls, Hawkins agreed to drive him to a 

nearby convenience store. When Basham and Hawkins 

left the residence, Fulks joined them and the three 

men left in Hawkins’s truck. The two men then told 

Hawkins that their vehicle was disabled in Robards, 

Kentucky, and they asked for a ride. During the 

drive, Fulks told Hawkins that the disabled vehicle 

was actually in Indiana and directed Hawkins to drive 

there. Fulks later changed the directions again; by 

this point, Basham was pointing a knife at Hawkins to 

keep him driving to their preferred destination. At 

some point, Fulks took the wheel, drove the truck into 
4

a field, and ordered Basham to tie Hawkins to a tree.

Fulks became dissatisfied with Basham’s speed in tying 

and eventually completed the job himself. They left 

Hawkins clothed in shorts, flip-flops, and a shortsleeved vest. Fifteen hours later, Hawkins freed 

himself and flagged a passing motorist. When 

interviewed by police officers later that day, Hawkins 

identified Basham and Fulks as the individuals who 

kidnapped him.

After abandoning Hawkins, Fulks and Basham drove 

to Portage, Indiana, to visit one of Fulks’s former 

girlfriends, Tina Severance. They abandoned Hawkins’s 

vehicle at a hotel and walked to a trailer shared by 

Severance and her friend Andrea Roddy. The four then 

drove to a hotel in northern Indiana and stayed there 

for the next few days. At some point, Basham and 

Roddy began a consensual sexual relationship.

During their time in Indiana, Fulks asked 

Severance if she knew anyone from whom he could obtain 

firearms. Severance informed Fulks that a friend of 

hers, Robert Talsma, kept several firearms at his 

home; Severance and Roddy thereafter agreed to lure 

Talsma out of his house by offering to buy him 

breakfast. While Talsma was at breakfast with the 

women, Basham and Fulks entered Talsma’s home and 

stole four firearms, a ring, and several blank checks.

They then reunited with Severance and Roddy, and the 

four traveled in Severance’s van to Sturgis, Michigan.

That night, November 8, Basham and Roddy stayed at a 

hotel in Sturgis while Fulks and Severance drove to 

Goshen, Indiana, to smoke marijuana and 

methamphetamines with Fulks’s brother, Ronnie Fulks.

That evening, two police officers began knocking 

on doors at the hotel where Basham and Roddy were 

staying in Sturgis. Basham opened his room door, saw 

the officers, closed the door, and cocked a .22 

caliber revolver that he had stolen from Talsma. The 

officers ended up leaving before reaching Basham’s 

door. Basham told Roddy, however, “I was about to 

shoot me a mother-f***er cop right. I was going to 

blow the f***ing cop away.” The next morning, 

November 9, Basham and Roddy drove to a local Kmart to 

purchase sundries. Basham met a group of teenagers in 

the parking lot, and he reported to Roddy that they 

had some money and he wanted to kill them for it. 
5

After purchasing sundries with some of Talsma’s stolen 

checks, Basham invited the teenagers back to the hotel 

room. Severance and Fulks arrived back at the hotel 

shortly thereafter, and the teenagers left. Fulks, 

Basham, Severance, and Roddy then drove Severance’s 

van to the home of Fulks’s brother, Ronnie Fulks, in 

Goshen, Indiana.

On November 10, 2002, the group of four drove to 

Piketon, Ohio, in Severance’s van. Basham again used 

Talsma’s checks to buy sundries, which Roddy later 

returned for cash. Basham and Fulks also bought two 

sets of camouflage clothing and Fulks stole a purse 

and cell phone from a Wal–Mart parking lot. On 

November 11, they drove to Kenova, West Virginia, near 

Huntington, and rented a hotel room. Fulks and 

Basham, wearing their sets of camouflage clothing, 

left the hotel room by themselves and did not return 

until the morning hours of November 12.

Samantha Burns, a nineteen-year-old Marshall 

University student, worked at the J.C. Penney’s store 

in the Huntington Mall. In addition, Burns also 

participated in a school fundraiser by selling candy 

boxes, which she kept in her car. On November 11, 

Burns met her aunt at Penney’s to purchase clothing 

for one of Burns’s nieces; they parked in separate 

locations at the mall. At 9:46 p.m. that evening, 

Burns called her mother to say she was staying at a 

friend’s house that night. Burns has never been seen 

since.

During the early morning hours of November 12, 

2002, a local fire department responded to a reported 

explosion and fire at a rural area three miles outside 

of Huntington. The responding firemen found a car 

later identified as belonging to Burns burned out at a 

cemetery.

Meanwhile, Fulks and Basham returned to the hotel 

carrying muddy clothing, and Fulks indicated that they 

had stolen some money. Later that morning, the group 

of four checked out of the motel and drove to South 

Carolina, where Fulks had lived for several years in 

the 1990s. Several facts emerged linking Basham and 

Fulks to Burns’s disappearance. Roddy and Severance 

reported seeing mud, as well as one of Burns’s candy 

boxes, in the van. In addition, Basham began wearing 
6

a heart-shaped ring around his neck that belonged to 

Samantha Burns. Basham told the women that he had 

stolen the candy from a girl selling it and that he 

had stolen the ring from a car. Roddy also found 

Burns’s photo ID discarded with other items linking 

Burns to Fulks and Basham. Moreover, it was later 

revealed that Fulks used Burns’s ATM card twice on the 

evening of November 11 at local banks.

The evening of November 12, Fulks, Basham, 

Severance and Roddy arrived at a motel in Little 

River, South Carolina. The next day was a day of 

relative rest; Fulks and Basham stole several purses 

and wallets from unattended vehicles, went shopping, 

and then returned to the motel room to smoke 

marijuana, drink, and play cards. On November 14, the 

four moved to a motel in Myrtle Beach, South Carolina.

Fulks and Basham left the women and drove to nearby 

Conway, South Carolina. Hoping to steal firearms, 

Fulks and Basham burglarized the Conway home of Sam 

Jordan. Carl Jordan, Sam’s father, drove up to the 

home as Fulks and Basham were leaving. Fulks 

attempted to ram Jordan’s car with Severance’s van but 

stopped short; Basham exited the house and fired a 

shot at a nearby greenhouse. Fulks then fired a shot 

that shattered the back-window of Jordan’s car. 

Jordan fled the area, with Fulks and Basham in 

pursuit, still firing. At some point, Fulks and 

Basham ceased their chase, abandoned Severance’s van, 

and stole a truck, which they drove to the Wal–Mart in 

Conway.

Upon arriving at the Wal–Mart, Basham approached 

a blue BMW sedan driven by forty-four year old Alice 

Donovan. Basham entered the car and forced Donovan to 

drive to the back of the parking lot, where Fulks 

waited. There, Fulks entered the driver’s side of the 

car and drove away; at 4:03 p.m., Fulks used Donovan’s 

ATM card to purchase gas from a service station in 

Shallote, North Carolina. At 4:30 p.m., Donovan 

called her daughter to say she was shopping and would 

be home late. Later that day, several men at the Bee 

Tree Farms Hunt Club in Winnabow, North Carolina, saw 

two men and a woman in a blue BMW drive to the end of 

a road by the lodge, turn around, and leave the area. 

Donovan, like Burns, was never seen again.
7

Basham and Fulks returned to their Myrtle Beach 

motel later that day and told Severance and Roddy they 

had to leave town because Basham shot at some police 

officers and Severance’s van had been seized. Basham 

and Fulks took Donovan’s BMW and began driving to West 

Virginia, leaving Severance and Roddy behind in Myrtle 

Beach. Donovan’s ATM card was used in Little River, 

Myrtle Beach, and Raleigh, North Carolina. Meanwhile, 

Severance filed a (false) police report alleging that 

her van had been stolen.

On November 15, 2002, Fulks and Basham arrived at 

the home of Beth McGuffin near Huntington, West 

Virginia. McGuffin, a childhood friend of Fulks, 

agreed to let Fulks and Basham stay at her home.

Fulks introduced Basham to her as “Tommy Blake.”

Later on November 15, Fulks and Basham purchased crack 

cocaine to share. Basham and McGuffin also began a 

sexual relationship and had sexual intercourse three 

times over the next several days. Basham also gave 

McGuffin Burns’s heart-shaped ring. On November 16, 

the three watched a news story about the disappearance 

of Samantha Burns. When McGuffin remarked that Burns 

was likely dead, Fulks stated, “[s]he is dead.”

At the same time, the Federal Bureau of 

Investigation (“FBI”) was investigating the kidnapping 

of James Hawkins, which it believed Basham and Fulks 

had committed after escaping from prison. The FBI 

learned that the two men might be in Myrtle Beach, 

South Carolina, and that Severance had reported her 

van stolen. On November 16, the FBI and local 

authorities interviewed Severance and learned that 

Basham and Fulks had left the area. The FBI also 

became aware of the disappearance of Alice Donovan and

suspected that Fulks and Basham might be involved.

On Sunday, November 17, Fulks, Basham, and 

McGuffin smoked marijuana before Fulks and Basham left 

McGuffin’s house, telling her they were headed to 

Arizona. Instead, they stopped at the Ashland Mall in 

Ashland, Kentucky, about 20 minutes from Huntington. 

Sometime that evening, in a Wal–Mart parking lot, 

Basham approached Deanna Francis’s fifteen-year-old 

daughter as she entered the passenger side of their 

vehicle. Basham pointed a gun into the teenager’s 

side, attempted to enter the car, and asked for 

directions to Greenville, Kentucky. When Basham 
8

realized Deanna’s daughter was talking on her cell 

phone, he said “[M]y bad, I didn’t mean to scare you” 

and walked away. Deanna immediately called the 

police.

Ashland Police Officer Matt Davis was 

approximately four blocks from the Ashland Mall when 

he heard the dispatch about the attempted carjacking. 

Davis drove to the mall, where he saw Basham, who met 

the description of the suspected carjacker. Davis 

exited his patrol vehicle and approached Basham; 

Basham immediately began to flee. As Davis chased 

Basham through the mall area, Basham drew his weapon 

and fired a shot in the air. As the chase continued, 

Basham drew his weapon a second time, turned, and 

fired at Davis, who fired three shots of his own in 

return. Basham eventually made his way to a rail yard 

on the banks of the Ohio River where he hid. Davis 

radioed reinforcements, which surrounded the area. 

More than an hour later, at approximately 9:00 p.m., 

Basham surrendered to police, identifying himself as 

“Josh Rittman.” Police recovered a knife — later 

identified as belonging to Alice Donovan — and a crack 

cocaine pipe on Basham’s person. Basham’s pistol was 

recovered from a rail car several days later.

Fulks returned to McGuffin’s home that evening 

and watched a news report on Basham’s arrest. The 

morning of November 18, Fulks left McGuffin’s 

residence to drive Donovan’s BMW to his brother’s 

house in Goshen, Indiana. Fulks stopped at a rest 

area, where an Ohio state trooper, who had ascertained 

that the BMW was stolen, approached him; a high-speed 

chase then ensued at speeds in excess of 130 miles per 

hour. During this chase, Fulks nearly struck another 

trooper before managing to evade capture. Fulks 

eventually arrived at his brother’s home in the early 

morning hours of November 20. Police officers were 

staking out Ronnie’s home, however, and when Fulks, 

his brother Ronnie, and Ronnie’s girlfriend drove to a 

barn to hide the BMW, Fulks was arrested. Fulks’s 

semen and the bodily fluids from an unidentified 

female were later found in the back seat of the BMW.

Back in West Virginia, investigators determined 

that “Josh Rittman” was actually Basham, and that he 

was a recent prison escapee. At 2:00 a.m. on November 
9

19, Basham was interviewed for the first time. Basham 

first told investigators that he and Fulks had escaped 

from prison and committed several crimes along the 

way. Later, he admitted that they had traveled to 

South Carolina and kidnapped a woman in Conway, South 

Carolina. Basham, however, insisted that the woman 

was alive and with Fulks.

At 9:45 a.m. on November 19, investigators reinterviewed Basham. Basham told investigators that he 

and Fulks kidnapped a man after escaping from prison, 

and carried firearms when kidnapping Donovan. He 

further told investigators that they used her credit 

cards to obtain cash, that they had driven Donovan to 

Ashland, Kentucky, and that Fulks was waiting for

Basham when Basham was caught. This time, Basham said 

he thought Donovan was dead because she was not with 

Basham and Fulks at the Ashland Mall. During this 

interview, Basham also told investigators that Fulks 

“got a girl” in West Virginia as well.

On November 20, FBI agents interviewed Basham for 

seven hours. On this occasion, Basham told 

investigators that after they kidnapped Donovan, Fulks 

dropped Basham off at the hotel, drove Donovan to a 

resort area, raped her, tied her up, and left her. 

Basham also claimed that Fulks was the one who 

actually carjacked Donovan. Basham also clarified 

that when he said Fulks “got a girl” in West Virginia, 

that he meant they had stolen a girl’s credit cards, 

not that they had kidnapped anyone else. At this 

point, investigators believed Donovan may have been 

still alive. Basham drew a map of the places Fulks 

and Basham had been with Donovan. This map roughly 

corresponded with the Savannah Bluff area of Horry 

County, South Carolina. A two-day search of the area, 

however, left investigators no closer to discovering 

Donovan’s fate.

On November 25, Basham, now represented by 

counsel, agreed to further aid investigators in 

finding Donovan’s body. He drew a map, mentioned 

passing through a cemetery, and informed investigators 

that Donovan’s body was left covered but unburied in 

the woods. Basham was unable to identify any specific 

landmarks to aid investigators.
10

On November 26, through counsel, Basham informed 

investigators that Samantha Burns was dead and that he 

and Fulks had rolled her body down an embankment and 

into the Guyandotte River near Huntington.

Two days later, on November 28, FBI and state 

investigators organized a search team to search 

Brunswick County, North Carolina, for Donovan’s body. 

Basham, now represented by Cameron B. Littlejohn, Jr. 

and William H. Monckton, VI, accompanied the agents. 

During the ride, Basham saw a deer and said, “I never 

could kill a deer and here I have,” but was cut off 

before finishing his sentence. Later that day, Basham 

told the investigators that he and Fulks had driven 

past a park, taken Donovan’s body out of the car, 

dragged it into the woods, and covered it. On two 

occasions, Basham became emotional as he identified 

landmarks where he and Fulks had taken Donovan.

Later, Basham told the investigators he had thrown out 

a Liz Claiborne purse strap at the Bee Tree Farms 

Cemetery. When they arrived, the local sheriff asked, 

“Is this where it happened?” Basham responded, “This 

is it. It is.” The cemetery was searched to no 

avail. . . .

Starting in late November 2002, while in jail 

awaiting trial, Basham began writing letters to 

McGuffin, telling her his real name, claiming that he 

loved her, that he had not “hurt that girl from South 

Carolina”, and that Fulks was responsible for their 

crime spree. On this last point, Basham wrote that 

Fulks “lied to me” and “told me he had all kinds of 

money, and a new car, and all of this stuff just 

waiting on him, and all he needed me to do was to show 

him the way away from the jail because I was raised in 

that area.” Basham was not entirely forthright with 

McGuffin, however, as he also wrote that Burns’s ring, 

which he had given to McGuffin, was “not stolen or 

anything like that.” Basham also confided that he 

“did a lot of bad s**t with [Fulks].”

On December 24, 2002, Basham called a former 

middle-school teacher in Madisonville, Kentucky, 

Clifford Jay. When Jay asked whether Basham had 

killed Alice Donovan, Basham replied, “Yes, Sir. We 

killed them.” Jay was surprised by the use of the 

term “them,” because he had only heard about the 

Donovan killing.
11

Basham, 561 F.3d at 309-14 (alterations in original) (footnotes 

and citations omitted). Following our opinion, it was confirmed 

that Donovan’s remains had been found in a wooded area in Horry 

County, South Carolina.

On December 17, 2002, Basham and Fulks were charged in the 

District of South Carolina for their crimes against Donovan. 

The operative eight-count superseding indictment was then 

returned on April 23, 2003. The first two counts — carjacking 

resulting in death, in violation of 18 U.S.C. § 2119, and 

kidnapping resulting in death, in contravention of 18 U.S.C.

§ 1201(a) — carried with them the possibility of a death 

sentence. On September 13, 2003, the Government filed a notice 

of intent to seek the death penalty against Basham under 18 

U.S.C. § 3593(a), the Federal Death Penalty Act.

Basham’s and Fulks’s cases were severed for trial on 

January 29, 2004.2

 Basham’s trial commenced on September 13, 

2004. The evidence during the guilt phase of the trial 

proceedings included testimony from eighty-nine witnesses; postarrest statements made by Basham to the FBI, Clifford Jay, and 

 2 Fulks pleaded guilty and, after a penalty phase, was 

sentenced to death. We affirmed his convictions and sentence on 

direct appeal. United States v. Fulks, 454 F.3d 410 (4th Cir. 

2006), cert. denied, 551 U.S. 1147 (2007). We also affirmed the 

denial of his subsequent § 2255 motion. See United States v. 

Fulks, 683 F.3d 512 (4th Cir. 2012), cert. denied, 134 S. Ct. 52 

(2013).
12

McGuffin; and surveillance videos of Donovan’s abduction in the 

Wal-Mart parking lot as well as ATM withdrawals made by Fulks 

using Donovan’s ATM card. During trial, the defense conceded

Basham’s culpability in the carjacking and kidnapping. The 

defense argued, however, that Fulks had committed Donovan’s 

murder and was the instigator throughout the crime spree. To 

that end, during Basham’s opening statement, defense counsel 

asserted that the only “issue in controversy” was Basham’s 

intent to commit serious bodily harm to Donovan at the time of 

the abduction. After the thirteen-day guilt phase of the trial, 

the jury convicted Basham of all eight counts in the superseding 

indictment.

The penalty phase of the trial proceedings commenced on 

October 12, 2004. The prosecution introduced the trial record 

as its principal evidence. In addition, the prosecution 

presented testimony from correctional officers and a female 

nurse regarding Basham’s misconduct, drug use, and sexual 

misconduct towards female employees in prison; testimony from 

Donovan’s family regarding the impact of her death; and a

videotape showing a courtroom scuffle between Basham and deputy

U.S. Marshals that had occurred during the guilt phase of the 

trial. In mitigation, Basham put forth evidence that his 

parents encouraged his bad behavior, forced him to steal to 

support their drug habits, and introduced him to drugs, and that
13

Basham was sexually abused by one of his father’s friends. 

Basham also introduced mitigation evidence regarding his mental 

condition and ability to adapt to prison life. On November 2, 

2004, the jury returned a verdict recommending that Basham be

sentenced to death on Counts 1 and 2.

Basham’s convictions and death sentences were entered on 

February 16, 2005. An aggregate sentence of 744 months in 

prison was imposed on the remaining six counts.

B.

On appeal, we affirmed Basham’s convictions and sentence in 

all respects. See Basham, 561 F.3d at 339. On June 1, 2011, 

Basham timely filed his motion for habeas corpus relief pursuant 

to 28 U.S.C. § 2255. That motion listed thirty-four claims for 

relief, two of which Basham subsequently withdrew.

After conducting an evidentiary hearing over eight 

nonconsecutive days in late 2012 (the “§ 2255 hearing”), the 

district court denied Basham’s § 2255 motion for reasons 

explained in its thorough and well-crafted Opinion of June 5, 

2013. The district court granted Basham a certificate of 

appealability as to Claims 1 through 7, Claims 9 through 30, and 

Claim 32. The court subsequently denied Basham’s motion to 

alter or amend the judgment, made under Federal Rule of Civil 

Procedure 59(e), by way of its August 21, 2013 Reconsideration 

Order. Basham timely noticed this appeal on October 17, 2013, 
14

and we possess jurisdiction pursuant to 28 U.S.C. §§ 1291, 

2253(a), and 2255(d).

II.

We review de novo a district court’s legal conclusions in 

denying a 28 U.S.C. § 2255 motion. See United States v. Fulks, 

683 F.3d 512, 516 (4th Cir. 2012). Factual findings adduced 

from the evidence presented at a § 2255 hearing are reviewed for 

clear error. Id.

III.

On appeal, Basham first pursues four claims relating to an 

inculpatory statement he made to a law enforcement officer

demonstrating how Donovan had been strangled with a purse strap. 

Basham asserts that he was denied his right to the effective 

assistance of counsel when his lawyers permitted him to speak 

with investigators outside of their presence (Claim 1 of 

Basham’s § 2255 motion), and later when his lawyers failed to 

challenge the admissibility of his inculpatory statement on the 

ground that it resulted from an unlawful interrogation (Claim 

2). Additionally, Basham contends that the prosecution 

committed misconduct by presenting false testimony at trial to 

the effect that Basham’s statement admitted that he was 

Donovan’s killer (Claim 11), and that his lawyers were 
15

ineffective by not raising the misconduct contention on direct 

appeal (Claim 12).

Second, Basham mounts two challenges relating to his 

competency to stand trial. That is, he maintains that he was 

tried while incompetent, in violation of his due process rights

(Claim 4). Relatedly, Basham alleges that his trial lawyers 

were constitutionally ineffective by not ably litigating his 

competency (Claim 5).

Third, Basham asserts that his trial lawyers rendered 

ineffective assistance in their handling of evidence presented

by the prosecution relating to the murder of the second victim, 

Samantha Burns (Claim 15). The Burns evidence was presented 

during the guilt phase of Basham’s trial, and he contends that 

his lawyers were deficient by failing to challenge the 

admissibility and scope of that evidence.

Fourth, Basham raises a final ineffective assistance claim, 

arguing that his trial counsel’s file was not properly provided 

to the lawyers handling his direct appeal (Claim 30). That 

deficiency, he maintains, impeded his appellate lawyers from 

identifying viable challenges on appeal.

A.

Basham’s first set of claims arises from a statement he 

made to law enforcement authorities in November 2002, when he 

demonstrated how Donovan had been strangled with a purse strap. 
16

To provide context to those claims, we first review the relevant 

background of the contested statement and how it was used by the 

prosecution at Basham’s trial. We then address the merits of 

the claims.

1.

Following Basham’s November 17, 2002, arrest, he made 

several statements to law enforcement officers, after being 

advised of his Miranda rights and on the advice of his stateappointed counsel, essentially admitting his involvement in the 

carjacking and kidnapping of Alice Donovan. Cameron Littlejohn 

and William Monckton, both death penalty-qualified lawyers, were 

appointed to represent Basham on November 27, 2002. The 

following day — Thanksgiving Day — Basham participated in a 

search for Donovan’s body in Brunswick County, North Carolina 

(the “Thanksgiving search”). Littlejohn and Monckton had 

determined that participating in the Thanksgiving search could

help Basham’s case by possibly finding Donovan still alive, or 

by demonstrating his willingness to assist law enforcement. 

Basham had no proffer agreement from the government, exposing 

him to the risk that any statements he made during the search 

might be used against him. Littlejohn and Monckton therefore 

sought to limit Basham’s participation to directing the search 

team in locating Donovan’s body. Present during the search were 

FBI Agent Jeffrey Long, officers from the local Conway, South 
17

Carolina police department, Brunswick County Sheriff Ronald 

Hewett, several sheriff’s deputies, and approximately twenty 

local volunteers.

The first several hours of the Thanksgiving search were 

unsuccessful. After consulting privately with Basham, 

Littlejohn advised the investigators that, “hypothetically,” 

Fulks had raped Donovan, strangled her with a purse strap, and 

then slit her throat.3

 Afterwards, in Littlejohn’s presence, 

Basham told Sheriff Hewett that the search team should look for 

a Liz Claiborne purse strap at the Bee Tree Farms cemetery. The 

group then drove to that location.

At the cemetery, Basham, Sheriff Hewett, and two of 

Hewett’s deputies wandered about forty-five feet away from the 

rest of the group, including Basham’s lawyers. Basham and 

Hewett remained within the sight of Littlejohn and Monckton, but 

the lawyers could not hear Basham’s words. During that

encounter, Basham made a statement to Hewett — part oral and 

part demonstrative (the “cemetery statement”). Specifically, 

Basham told Hewett that he believed the strap was from a Liz 

Claiborne purse and that he had thrown the strap into the woods. 

Although the search team was unable to locate the strap, Basham 

 3 The hypotheticals shared by Littlejohn led to Littlejohn 

and Monckton being disqualified, on April 9, 2003, from 

continuing to represent Basham.
18

confirmed to Hewett several times that he believed they were at 

the correct location, directing the team where they should 

search. Basham used his hands to estimate the length of the 

purse strap and to show how he (Basham) had tossed the strap 

into the woods. He also demonstrated a movement depicting how

Donovan was strangled with the strap (the “strangling 

demonstration”).

Leading up to trial, Basham moved to suppress all of his

post-arrest statements. The district court conducted an 

evidentiary hearing from February 24 through February 26, 2004

(the “suppression hearing”), to assess whether Basham’s

statements were voluntary and admissible under Jackson v. Denno, 

378 U.S. 368, 380 (1964) (“A defendant objecting to the 

admission of a confession is entitled to a fair hearing in which 

both the underlying factual issues and the voluntariness of his 

confession are actually and reliably determined.”). By the time 

of the suppression hearing, Basham was represented by lawyers 

Jack Swerling and Gregory Harris. They sought to suppress all 

statements Basham made during the Thanksgiving search, other 

than statements providing directions to Donovan’s body and the 

purse strap.

Given that the strangling demonstration was not a 

directional statement, it was encompassed within the lawyers’

suppression efforts. They did not, however, focus directly on 
19

that demonstration or contend that the broader cemetery

statement was the product of an illegal interrogation pursuant 

to Edwards v. Arizona, 451 U.S. 477, 484-85 (1981) (“[A]n 

accused, . . . having expressed his desire to deal with the 

police only through counsel, is not subject to further 

interrogation by the authorities until counsel has been made 

available to him, unless the accused himself initiates further 

communication, exchanges, or conversations with the police.”). 

The lawyers, rather, focused primarily on suppressing 

Littlejohn’s hypotheticals. The district court ultimately

excluded the hypotheticals, but ruled that the statements Basham 

made during the Thanksgiving search — including the cemetery 

statement and the strangling demonstration — were admissible.

At trial, during the guilt phase, the prosecution 

introduced evidence from the Thanksgiving search through Sheriff 

Hewett. On direct examination, Hewett testified to a number of 

inculpatory statements Basham had made during the search in 

Littlejohn’s presence. Hewett also testified regarding the 

cemetery statement, mimicking Basham’s strangling demonstration

for the jury. Hewett’s testimony on direct gave no indication 

as to whether it was Basham or Fulks who had strangled Donovan

with the purse strap. On cross-examination, attorney Harris

returned to the cemetery statement. Harris was aware that 

Hewett’s notes from the Thanksgiving search contained no 
20

indication that Basham had suggested that he — rather than Fulks 

— had strangled Donovan. Seeking to draw out that point to the 

jury, Harris engaged in the following colloquy with Hewett:

Q. Now, at the cemetery, and I would like you to 

refer to your notes if that will help you.

A. Okay.

Q. There is nothing in your notes, nor is there 

anything in Lieutenant Crocker’s notes that indicate 

that Brandon Basham told you that he used the strap, 

is there?

A. No, sir. He did not tell me he used the strap. 

He demonstrated, though.

Q. He demonstrated?

A. Yes, sir.

Q. Your notes, nor Lieutenant Crocker’s notes say 

that he did that; isn’t that true?

A. That is true because he didn’t say. He showed.

J.A. 1358-59 (emphases added).4 Basham posits on collateral 

attack that the underscored portions of the foregoing testimony 

could suggest that, although Basham had not said that he used 

the strap to strangle and kill Donovan, he demonstrated as much. 

That is, the underscored language might be construed as Basham’s

 4 Lieutenant Crocker, a law enforcement officer from North 

Carolina’s Brunswick County, interviewed Sheriff Hewett 

following the Thanksgiving search and prepared a report of those 

events. The district court observed that Crocker’s report is 

vague and written in the passive voice. It does not indicate 

whether Basham stated or implied that he, rather than Fulks, had 

strangled Donovan.
21

admission that he killed Donovan (the “actual killer 

suggestion”).

Neither the defense nor the prosecution followed up with 

Sheriff Hewett to clarify his testimony. In closing arguments 

at each trial phase, the prosecution briefly referenced Hewett’s 

testimony regarding the strangling demonstration. During the 

guilt phase, near the end of its lengthy summation, the 

prosecution recounted that Basham had demonstrated that “a Liz 

Claiborne purse strap was used to kill Alice Donovan.” See J.A. 

1472. The prosecutor argued that, although Basham had not said 

he killed Alice Donovan, “he demonstrated it.” Id. A few 

moments later, the prosecutor urged that after seeing Hewett 

“demonstrate how Brandon Basham demonstrated how Alice Donovan 

was strangled” — and hearing the testimony of Clifford Jay that 

Basham had admitted “we killed them” — the jury should return 

guilty verdicts. Id. at 1473-74. According to the prosecutor, 

that evidence, “alone, seals the deal.” Id. at 1474. 

Thereafter, in its penalty-phase closing, the government again 

referenced the strangling demonstration in arguing that the 

statutory intent element had been proved.

2.

a.

The Sixth Amendment guarantees an accused the effective 

assistance of counsel, the familiar standards of which were 
22

established in Strickland v. Washington, 466 U.S. 668 (1984). 

Under Strickland, a movant seeking collateral relief from his 

conviction or sentence through an ineffective assistance claim 

must show (1) that his counsel’s performance was deficient and 

(2) that the deficiency prejudiced his defense. Id. at 687.

The deficiency prong turns on whether “counsel’s 

representation fell below an objective standard of 

reasonableness . . . under prevailing professional norms.” 

Strickland, 466 U.S. at 688. A reviewing court “must apply a 

‘strong presumption’ that counsel’s representation was within 

the ‘wide range’ of reasonable professional assistance.” 

Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting 

Strickland, 466 U.S. at 689). The Strickland standard is 

difficult to satisfy, in that the “Sixth Amendment guarantees 

reasonable competence, not perfect advocacy judged with the 

benefit of hindsight.” See Yarborough v. Gentry, 540 U.S. 1, 8 

(2003).

The prejudice prong of Strickland inquires into whether 

counsel’s deficiency affected the judgment. See 466 U.S. at 

691. The movant must demonstrate “a reasonable probability 

that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different. A reasonable probability 

is a probability sufficient to undermine confidence in the 

outcome.” Id. at 694. In the context of a death sentence, “the 
23

question is whether there is a reasonable probability that, 

absent the errors, the sentencer . . . would have concluded that 

the balance of aggravating and mitigating circumstances did not 

warrant death.” Id. at 695. The prejudice analysis “requires 

the court deciding the ineffectiveness claim to ‘consider the 

totality of the evidence before the judge or jury.’” Elmore v. 

Ozmint, 661 F.3d 783, 858 (4th Cir. 2011) (quoting Strickland, 

466 U.S. at 695). In evaluating that evidence, “[w]e are not 

bound . . . to view the facts in the light most favorable to the 

prosecution.” Tice v. Johnson, 647 F.3d 87, 111 (4th Cir. 

2011).

b.

By way of his § 2255 motion, Basham advances three

ineffective assistance claims relating to his cemetery statement

and the resulting testimony offered by Sheriff Hewett at trial. 

With respect to the first two of those claims, Basham asserts, 

first, that Littlejohn and Monckton performed deficiently during 

the Thanksgiving search when they allowed Basham to speak to 

Hewett outside of their presence, and, second, that Swerling and 

Harris were deficient by not arguing at the suppression hearing

that Basham’s cemetery statement was the inadmissible product of

an illegal interrogation.

Importantly, those two ineffective assistance claims rely 

on a shared argument as to Strickland’s prejudice prong. Had 
24

his lawyers performed competently — either by remaining with him 

during the Thanksgiving search and preventing him from making 

the cemetery statement (Littlejohn and Monckton), or by securing 

the suppression of the cemetery statement through an Edwards

argument (Swerling and Harris) — Sheriff Hewett would not have 

testified to the cemetery statement at Basham’s trial. In the 

absence of that testimony, Basham contends that there is a 

reasonable probability that he would not have been sentenced to 

death. For purposes of establishing prejudice, not all of 

Basham’s oral and demonstrative cemetery statement is relevant, 

as most of the statement was cumulative to other, uncontroverted 

statements Basham made. The strangling demonstration is the 

only noncumulative portion of the cemetery statement. Basham’s 

argument as to prejudice also homes in on the actual killer 

suggestion made by Hewett while testifying to the strangling 

demonstration.

The district court determined that Basham failed to show 

that his lawyers’ alleged deficiencies prejudiced his defense 

under Strickland.5 The court reached that conclusion through an

 5 The district court did not analyze whether Littlejohn and 

Monckton rendered deficient performance when they permitted 

Basham to speak with Sheriff Hewett outside of their presence 

during the Thanksgiving search. As to Basham’s claim relating 

to Swerling and Harris, the court extensively assessed the 

evidence presented during the suppression and § 2255 hearings, 

and concluded that, “based on the totality of the circumstances 

(Continued)
25

exceedingly thorough analysis of the issue, which we will 

briefly summarize. See Opinion 23-46, 74-75. The court began 

by examining Hewett’s trial evidence on cross-examination, which 

the court acknowledged could be interpreted to suggest that 

Basham had demonstrated how he had used the purse strap to 

strangle Donovan. The court rejected Basham’s contention that 

prejudice was evident simply from the prosecutor’s references to 

Hewett’s testimony. Those summations, the court found,

repeatedly used passive language to indicate Basham had 

demonstrated how Donovan was strangled. From there, the court 

summarized the overall case against Basham, which, “viewed in 

its totality, was overwhelming.” Id. at 39. Basham had not 

shown, the court explained, that Hewett’s testimony regarding 

the strangling demonstration or his actual killer suggestion 

might have impacted the jury’s overall analysis of the 

aggravating and mitigating factors. Id. at 43-46. Given that 

the controverted testimony had, at most, a “less than 

significant” impact only on one nonstatutory mitigating factor, 

id. at 45, and in light of the overwhelming support in the 

record justifying the death sentence, the court was “left with 

 

. . . , no Edwards violation occurred. For at least this 

reason, then, trial counsel’s performance was not deficient in 

failing to raise the issue” at the suppression hearing. See

Opinion 74.
26

the firm conclusion that Basham has been unable to show that 

‘the decision reached [by the jury] would reasonably likely have 

been different absent the error[],’” id. at 46 (alterations in 

original) (quoting Strickland, 466 U.S. at 696).

On appeal, Basham urges that his lawyers’ deficiencies 

prejudiced his defense at the penalty phase. Our task at this 

stage is to “reweigh the evidence in aggravation against the 

totality of available mitigating evidence.” Wiggins v. Smith, 

539 U.S. 510, 534 (2003). Basham contends that “the mitigating 

evidence presented to the jury might have carried greater weight 

had the jury not been told by the Government that Basham killed 

Donovan with his own hands.” See Br. of Appellant 47.

The aggravating evidence against Basham was strong. The 

jury unanimously found, beyond a reasonable doubt, six of the 

seven nonstatutory aggravating factors alleged, including that 

Basham: escaped from a detention facility; carjacked and 

kidnapped Samantha Burns, resulting in her death; committed a 

first-degree burglary of Carl Jordan’s residence and then 

attempted to murder him; kidnapped and carjacked James Hawkins; 

attempted to murder a police officer in Ashland, Kentucky; and 

impacted Donovan’s families and friends. The jury did not find 

unanimously the future dangerousness factor. The trial record 

amply supported the six aggravators that the jury found against 

Basham. Because the aggravators do not directly concern 
27

Donovan’s death, moreover, omitting the actual killer suggestion 

and the strangling demonstration would not have affected the 

aggravating factors.

The defense submitted to the jury five statutory mitigating 

factors and thirty nonstatutory mitigating factors. On the 

statutory factors, at least one juror found that Basham had 

impaired capacity and committed the offense while severely 

disturbed, while no jurors found duress, minor participation, or 

insignificant prior history. See 18 U.S.C. § 3592(a). The 

nonstatutory factors included issues such as Basham’s role in 

the offense, family background, substance abuse, history of 

abuse, mental and emotional problems, and low intelligence. The 

jury’s findings on the nonstatutory factors differed between its 

special verdict forms on the kidnapping and the carjacking 

charges but, in all, most of those factors were found present by 

at least one juror. Relevant here, however, is that no juror 

found as to either offense that Basham had proved by a 

preponderance of the evidence that “Brandon Leon Basham played a 

lesser role than Chadrick Evan Fulks in the kidnapping and 

carjacking of Alice Donovan, and this factor is mitigating.” 

See J.A. 2472, 2484. The district court determined the 

foregoing to be the only factor potentially impacted by the 

actual killer suggestion, and we agree. We also agree with the 

court’s conclusion that, considering the totality of the 
28

evidence, there is not a reasonable likelihood that the actual 

killer suggestion would have altered the jury’s decision to 

recommend death.

First, the government’s overarching theory in Basham’s 

prosecution undermines the significance that Basham assigns to 

the actual killer suggestion. The prosecution took the position 

that Basham and Fulks aided and abetted each other in 

kidnapping, carjacking, and killing Donovan.6

 Neither of their

convictions turned on which man killed Donovan. Rather, the 

prosecution maintained that, in their crimes against Donovan, 

Basham and Fulks “were acting together in unison as a team, a 

death squad, if you will.” See J.A. 1404. As the prosecution 

explained in its closing argument at the guilt phase of Basham’s 

 6 The jury charge during the trial’s guilt phase included an 

instruction on aiding and abetting, reflecting the prosecution’s 

theory. The district court charged the jury:

The guilt of a defendant in a criminal case may be 

proved without evidence that he personally did every 

act involved in the commission of the crime charged. 

The law recognizes that ordinarily, anything a person 

can do for himself may also be accomplished by acting 

together with or under the direction of another person 

in a joint effort. Simply put, to aid and abet means 

to assist the perpetrator of the crime. So, if the 

defendant aids and abets another person by willfully 

joining together with that person in the commission of 

a crime, then the law holds the defendant responsible 

for the conduct of that other person just as though 

the defendant had engaged in such conduct himself. 

United States v. Basham, No. 4:02-cr-00992 (D.S.C. Mar. 27, 

2006), ECF No. 951, at 214.
29

trial, “[t]he government does not have to prove, and more 

importantly, you jurors do not have to find who, specifically, 

killed Alice Donovan in order to convict Brandon Basham.” Id.

That was because, “but for the actions of Brandon Basham, Alice 

Donovan would be alive today. But for the actions of Chad 

Fulks, Alice Donovan would be alive today. The two of them are 

responsible for the death of Alice Donovan.” Id. at 1405. The 

prosecution made no distinction between the hands of Basham and 

Fulks — if one had strangled her, so had the other. Thus, the 

prosecutor argued in Basham’s penalty-phase summation: “Now, 

does that mean Brandon Basham’s strangling of Alice Donovan is 

the only hand that caused Alice Donovan’s death? The government 

doesn’t submit that. The government submits, and submitted all 

along, that Chad Fulks is just as responsible.” Id. at 2312. 

That sentiment was repeated on rebuttal, when the prosecutor 

declared that Donovan had died “at the hands of these two men.” 

Id. at 2433.

Second, the record clearly establishes that Basham actively 

participated with Fulks in committing the crimes against 

Donovan, and in ultimately ending her life. Basham does not 

suggest otherwise. Nor could he credibly make such an argument. 

Basham’s strangling demonstration was but one piece of the 

“overwhelming case” establishing Basham’s involvement in 

Donovan’s murder. See Basham, 561 F.3d at 328. Removing 
30

Sheriff Hewett’s contested testimony, the jury presentation 

included the following evidence:

• Videotape footage of Basham carjacking Donovan in a

Wal-Mart parking lot;

• A map drawn by Basham during a November 20, 2002 

interview with law enforcement, where he indicated 

the location of Donovan’s body;

• Basham’s statement to investigators on November 25, 

2002, that Donovan’s body should be at a cemetery, 

which “is where [he and Fulks] did their thing,” see

J.A. 1280;

• Basham’s participation in the Thanksgiving search on 

November 28, 2002, which indicated that he knew of 

the crimes committed against Donovan and the 

location of her body; 

• Basham’s directions to the search team during the 

Thanksgiving search, made with Littlejohn’s express 

consent: “You need to be looking for a strap. It 

is about this long. . . . It has Liz Claiborne on 

the strap. . . . Back at the cemetery[,] you need 

to go back to the cemetery and look for that strap,” 

see id. at 1332-33;

• Basham’s statements during the Thanksgiving search, 

made in Littlejohn’s presence, that after dragging 

Donovan’s body out of the car, he and Fulks “pulled 

her into the woods” and “covered the body with 

leaves and what he described as limbs,” see id. at

1337;

• Basham’s statement during the Thanksgiving search 

when, while riding in the van with Littlejohn, 

Basham saw a doe jump onto the road and remarked, 

“You know, I never could kill a deer and here I have 

. . . ,” see id. at 1329;

• Basham’s admission to Clifford Jay on December 24, 

2002, “Yes sir. We killed them,” see id. at 1388;

and
31

• Donovan’s knife being found in Basham’s possession 

when he was arrested.

The totality of the evidence leaves no doubt that Basham —

at the very least — aided and abetted the crimes committed 

against Donovan. Moreover, as the district court aptly noted,

elimination of the [strangling demonstration] would 

not have led the jury to the conclusion that Fulks was 

the one who strangled Donovan. Instead, the jury 

would have been left with an absence of testimony on

the question of who did the strangling and a complete 

record of Basham and Fulks’s seventeen-day cascade of 

misdeeds, which included two rapes and murders and at 

least five other attempted or potential murders.

See Opinion 44. The jury thus could have concluded that Basham 

had actually strangled Donovan, even without Hewett’s actual 

killer suggestion. Or, the jury could have decided that Fulks 

was the strangler, in which case Basham would still be deemed 

the killer, given the prosecution’s aiding-and-abetting theory. 

Or, the jury could have chosen the path suggested by the 

government and simply found that Basham and Fulks, together, 

killed Donovan. The end result would be the same: Basham and 

Fulks were equally culpable for all of their acts, meaning 

Basham was responsible for killing Donovan.

Basham urges that “an overly mechanical analysis” of 

prejudice is flawed, in that a reviewing court cannot “account 

for the intangible factors at play in each juror’s evaluation of 

whether Basham was deserving of death.” See Br. of Appellant 

46. Nonetheless, to succeed on his ineffective assistance 
32

claims, Basham is not entitled to satisfy the prejudice 

requirement through “rank speculation, defying calculation of a 

reasonable probability.” See United States v. Fulks, 683 F.3d 

512, 522 (4th Cir. 2012). The Supreme Court observed in

Strickland that errors might impact the underlying facts and 

inferences to sharply different degrees, and “a verdict or 

conclusion only weakly supported by the record is more likely to 

have been affected by errors than one with overwhelming record 

support.” See 466 U.S. at 695-96. Here, assuming Hewett’s 

actual killer suggestion and strangling demonstration were 

erroneously admitted, the totality of the evidence remains 

unaffected.

Subtracting the strangling demonstration and Hewett’s 

actual killer suggestion from the sum of evidence received by 

the jury, we are convinced that Basham has not established 

prejudice by a reasonable probability, “sufficient to undermine 

confidence in the outcome” of his proceedings. See Strickland, 

466 U.S. at 694. We thus agree with the district court that 

Basham’s ineffective assistance claims must fail, in that he 

cannot satisfy Strickland’s prejudice requirement.7

 7 Having concluded that Basham cannot satisfy Strickland’s 

prejudice prong on his ineffective assistance claims, we need 

not assess whether he can meet the deficiency prong on either 

claim. See Bell v. Cone, 535 U.S. 685, 695 (2002) (“Without

proof of both deficient performance and prejudice to the defense 

(Continued)
33

3.

Basham advances two additional claims arising from the 

cemetery statement, and more specifically from Sheriff Hewett’s 

actual killer suggestion. Basham contends, first, that his 

convictions must be reversed because the prosecution committed 

misconduct when it used that testimony knowing it was false, 

and, second, that his lawyers were ineffective in failing to 

raise the misconduct issue on direct appeal.

a.

In prosecuting a criminal trial, the Due Process Clause 

obliges the government “not [to] knowingly use false evidence, 

including false testimony, to obtain a tainted conviction.” 

Napue v. Illinois, 360 U.S. 264, 269 (1959). Due process is 

violated “regardless of whether the prosecution solicited 

testimony it knew to be false or simply allowed such testimony 

to pass uncorrected.” Boyd v. French, 147 F.3d 319, 329 (4th 

Cir. 1998) (citing Giglio v. United States, 405 U.S. 150, 153 

(1972)). Testimony by a law enforcement officer that is 

knowingly false or misleading “is imputed to the prosecution.” 

 

. . . , it could not be said that the sentence or conviction 

‘resulted from a breakdown in the adversary process that 

rendered the result of the proceeding unreliable,’ and the 

sentence or conviction should stand.” (quoting Strickland, 466 

U.S. at 687)).
34

Id. On collateral attack, a movant alleging this sort of 

misconduct must demonstrate three elements: (1) that the 

testimony at issue was false; (2) that the prosecution knew or 

should have known of the falsity; and (3) that a reasonable 

probability exists that the false testimony may have affected 

the verdict. See United States v. Roane, 378 F.3d 382, 400 (4th 

Cir. 2004); United States v. Kelly, 35 F.3d 929, 933 (4th Cir. 

1994). If the movant shows each of those elements, relief must 

be awarded. See United States v. Bagley, 473 U.S. 667, 679-80 

(1985).

Basham’s prosecutorial misconduct claim relates to Sheriff

Hewett’s actual killer suggestion and the related portions of 

the government’s closing arguments. Basham points to three 

instances in the record that, he contends, establish the 

prosecution knew or should have known that the testimony was 

false. First, FBI Agent Long prepared a report on December 4, 

2002, summarizing the Thanksgiving search. In that report, Long 

recounted that Basham had informed investigators that “[a]fter 

FULKS raped [Donovan], FULKS used a purse strap, which was 

approximately 18 inches long, and strangled Donovan.” See J.A. 

2698. Second, on April 22, 2003, Long appeared before a grand 

jury to obtain the superseding indictment. Consistent with his 

report, Long testified that Basham had told law enforcement

officers during the Thanksgiving search that Fulks had “actually 
35

killed” Donovan. Id. at 403. Third, while arguing an 

evidentiary issue in Fulks’s trial, and outside the presence of 

the jury, Assistant United States Attorney Johnny Gasser stated, 

“Brandon Basham said that Chad Fulks took the purse strap and 

strangled [Donovan].” Id. at 1004.

The district court rejected Basham’s misconduct claim. 

Initially, the court determined that the claim failed because it 

had been procedurally defaulted. Alternatively, the court 

rejected the claim on its merits. First, the court observed 

that AUSA Gasser made his statement in the context of an 

evidentiary argument during Fulks’s trial, outside the presence 

of the jury. Fulks had sought to introduce Basham’s inculpatory 

statement, “‘You know I have never even killed a deer and here I 

have . . . .’” See Opinion 26, 49 (quoting J.A. 1329). Citing 

the rule of completeness set forth in Federal Rule of Evidence

106, Gasser argued that Basham’s deer statement should not be 

admitted in isolation, considering that “Basham had on numerous 

occasions indicated that Fulks was the killer.” Id. at 49. The 

court concluded that “Gasser’s reliance on the rule of 

completeness during debate over an evidentiary issue does not, 

by any means, require a finding that at the Fulks trial the 

government adopted Basham’s self-serving statement that Fulks 

was the killer.” Id. As to Agent Long, the court noted that 

his report — which was consistent with his grand jury testimony 
36

— “was not introduced as an exhibit at Basham’s trial and merely 

memorialized Basham’s self-serving statement during the 

investigation.” Id. at 50. Long’s statements, the court 

determined, in no way “reveal an inconsistent position or false 

testimony employed by the government.” Id. The court thus

found that the prosecution had not presented false testimony and 

denied Basham’s claim.

The district court returned to this claim in denying 

Basham’s motion to amend or alter judgment. With respect to 

AUSA Gasser’s argument during Fulks’s trial, the court found 

that the prosecution “did not vouch for the accuracy of Basham’s 

statement,” and that “the government did not advance an argument 

to the court or to the jury that Basham was the one who used the 

strap to strangle Donovan.” See Reconsideration Order 3. 

Similarly, although the prosecution presented Long’s testimony 

to the grand jury, the court found that “the government did not 

in any way adopt” Long’s statement that Fulks strangled Donovan 

“as its theory of the case regarding who actually strangled 

Donovan.” Id. Further, the court observed that Basham “offered 

no evidence that Sheriff Hewett’s testimony was perjured,” 

compelling the court’s determination that Basham had not 

demonstrated that Hewett gave false testimony. Id. at 3-4. 

Having found that Basham had “failed to satisfy the threshold 

requirement to show that the testimony of which he complains was 
37

false,” the court determined that “no further analysis is 

required.” Id. at 4.

On appeal, Basham maintains that he has satisfied his 

burden of establishing his prosecutorial misconduct claim

because, “prior to Hewett’s testimony at Basham’s trial, the 

Government’s understanding from all sources was that Basham told 

Hewett that Fulks wielded the strap.” See Br. of Appellant 70. 

Therefore, according to Basham, the prosecution engaged in 

misconduct “when it not only failed to investigate and correct 

Hewett’s [actual killer suggestion], but seized upon that 

testimony [in closing arguments] to bolster its case in both 

guilt and penalty phases.” Id. at 72. 

To succeed on his prosecutorial misconduct claim, Basham 

must show that the district court’s finding that no false 

testimony was presented is clearly erroneous. See Rosencrantz 

v. Lafler, 568 F.3d 577, 586 (6th Cir. 2009) (applying clear 

error review to district court’s finding that government 

knowingly used false testimony); Pyles v. Johnson, 136 F.3d 986, 

996-98 (5th Cir. 1998) (same); United States v. Boyd, 55 F.3d 

239, 242 (7th Cir. 1995) (same). Our task, therefore, is to 

assess whether “the entire evidence” creates “the definite and 

firm conviction that a mistake [was] committed.” Easley v. 

Cromartie, 532 U.S. 234, 243 (2001) (internal quotation marks 

omitted). Thus, “[i]f the district court’s account of the 
38

evidence is plausible in light of the record,” we may not 

reverse that finding even if we “would have weighed the evidence 

differently.” Anderson v. City of Bessemer City, N.C., 470 U.S. 

564, 573-74 (1985).

Basham does not suggest that Hewett committed perjury, and 

he therefore must demonstrate that the record compels the 

conclusion that Hewett’s actual killer suggestion “create[d] a 

false impression of facts which are known not to be true.” 

United States v. Bartko, 728 F.3d 327, 335 (4th Cir. 2013) 

(internal quotation marks omitted). Implicitly, Basham argues —

as he must — that it was Fulks who strangled Donovan. But while 

Basham relies on isolated snippets of the record to establish 

that point, a fuller reading clarifies the uncertainty regarding 

the identity of Donovan’s killer. For example, a complete

reading of Long’s report shows that his statement that “FULKS 

. . . strangled Donovan” derived from Littlejohn’s hypothetical 

statements, which the government successfully moved to suppress. 

See J.A. 2698. In the grand jury proceedings, Long testified 

not only that Basham had blamed Fulks for actually killing 

Donovan, but that Fulks had blamed Basham. Id. at 403, 408. 

Similarly, AUSA Gasser’s statements during the evidentiary 

dispute in Fulks’s trial were not made for the truth of the 

matter. Gasser was simply arguing that Basham made both 

inculpatory and exculpatory statements during the Thanksgiving 
39

search, and Fulks should not be permitted to admit only the 

favorable statements into evidence.

Basham suggests that Hewett’s actual killer suggestion was 

false because at Fulks’s trial, the prosecution took the 

position that Fulks — not Basham — had strangled Donovan. In 

addressing Fulks’s § 2255 motion, we considered a similar

argument. See Fulks, 683 F.3d at 523-25. Fulks contended that 

the prosecutors had violated his due process rights by pursuing 

mutually inconsistent theories against Basham and Fulks, and 

referenced many of the same statements that Basham now 

highlights. We rejected Fulks’s claim because, “[v]iewed in the 

context of the entirety of both proceedings, the government’s 

core theory was that Fulks and Basham were equally culpable in 

Donovan’s murder and similarly deserving of the death penalty, 

regardless of which one physically ended her life.” Id. at 524. 

Our reasoning in Fulks applies to Basham’s claim here. The 

government’s consistent position has remained that Basham and 

Fulks shared responsibility for Donovan’s death.

In all, Basham has not shown that the district court 

clearly erred in finding that the prosecution did not present 

false testimony at his trial. That finding is plausible based 

on the entire record, and therefore must be affirmed. As the 

Supreme Court has recognized, “[t]he trial judge’s major role is 

the determination of fact, and with experience in fulfilling 
40

that role comes expertise.” Anderson, 470 U.S. at 574. As 

such, Basham cannot satisfy the first element of his

prosecutorial misconduct claim, and we affirm the court’s 

ruling.8

b.

Basham presents a separate ineffective assistance claim

that is based on his lawyers’ failure to raise the misconduct 

claim on direct appeal. The district court denied that claim in 

conjunction with its determination that Basham had not shown

sufficient cause to excuse his procedural default. We affirm 

the court’s ruling on this ineffective assistance claim, in that

the underlying misconduct claim is plainly without merit. See

Cooks v. Ward, 165 F.3d 1283, 1296-97 (10th Cir. 1998) 

(concluding that appellate counsel “cannot be said to have been 

ineffective for failing to raise [claim] on direct appeal” where 

claim determined on collateral attack to lack merit); see also

United States v. McHan, 386 F.3d 620, 623 (4th Cir. 2004) 

(observing that “we are, of course, entitled to affirm on any 

ground appearing in the record, including theories not relied 

 8 Because we agree with the district court’s ruling that 

Basham cannot satisfy the first element of his prosecutorial 

misconduct claim, we need not decide whether Basham might 

establish the remaining elements of that claim, or address the 

court’s alternative determination that the prosecutorial 

misconduct claim was procedurally defaulted.
41

upon or rejected by the district court” (alterations and 

internal quotation marks omitted)).

B.

Basham also maintains that he was tried and convicted while 

being legally incompetent, and that his lawyers were 

constitutionally ineffective by failing to raise the competency 

issue to the district court during trial. His arguments focus 

on two specific days — September 20 and October 26, 2004.

1.

The Due Process Clause of the Fifth Amendment prohibits the 

federal government from trying and convicting a mentally 

incompetent defendant. See Pate v. Robinson, 383 U.S. 375, 384-

86 (1966). The test for determining competency in a federal 

court is whether the defendant “has sufficient present ability 

to consult with his lawyer with a reasonable degree of rational 

understanding — and whether he has a rational as well as a 

factual understanding of the proceedings against him.” Dusky v. 

United States, 362 U.S. 402, 402 (1960) (per curiam). A movant 

can pursue either substantive or procedural competency-related 

claims on collateral attack. In a substantive competency claim, 

the movant asserts that he was, in fact, tried and convicted 

while mentally incompetent. In a procedural claim, on the other 

hand, the movant contends that the trial court failed to 

properly ensure that the accused was competent to stand trial, 
42

as required by 18 U.S.C. § 4241. See Beck v. Angelone, 261 F.3d 

377, 387-88 (4th Cir. 2001). In pursuing a substantive 

competency claim, such as Basham raises in his § 2255 motion, 

the movant is presumed to have been competent during his trial. 

See Burket v. Angelone, 208 F.3d 172, 192 (4th Cir. 2000). In 

that situation, the movant bears the burden of proving, by a 

preponderance of the evidence, that he was incompetent. See

United States v. Robinson, 404 F.3d 850, 856 (4th Cir. 2005).9

In its Opinion, the district court found that Basham was 

legally competent throughout his trial, including during the

specific challenged incidents on September 20 and October 26, 

2004. As explained below, the court’s findings are not clearly 

erroneous, and its denial of Basham’s competency-based claims 

must be affirmed.10 

 9 In contrast to a substantive competency claim, the movant

pursuing a procedural claim is presumed to have been incompetent

during the trial proceedings, and the government bears the 

burden of showing competency. See Beck, 261 F.3d at 387-88.

10 In the § 2255 proceedings in the district court, the 

government maintained that Basham’s substantive competency claim 

was procedurally barred because it was not raised on direct 

appeal. The court disagreed, determining that substantive 

competency claims are not subject to procedural default. See

Opinion 92. The courts of appeal are divided on that issue. 

Compare Hodges v. Colson, 727 F.3d 517, 540 (6th Cir. 2013) 

(holding that substantive competency claims are subject to 

procedural default rules), and LaFlamme v. Hubbard, 225 F.3d 663 

(9th Cir. 2000) (unpublished per curiam decision) (same), with

Sena v. N.M. State Prison, 109 F.3d 652, 654 (10th Cir. 1997) 

(concluding that substantive competency claims are exempt from 

(Continued)
43

a.

Basham first maintains that he was incompetent during an 

incident that occurred on Monday, September 20, 2004, while the 

trial was in its guilt phase. Following the lunch break that 

afternoon, before the jury returned to the courtroom, the 

district court informed Basham that he could not use tobacco, 

referred to here as “dip,” during the trial proceedings because 

the court was informed that Basham had previously thrown bodily 

fluids at deputy U.S. Marshals. Basham then requested to return 

downstairs to his holding cell, saying “I don’t feel good.” See

J.A. 1159. Of note, Basham had made previous requests not to 

attend trial, which the court had declined. The court similarly

denied Basham’s request of September 20, ruled that the trial 

would proceed, and instructed Basham to sit down. Basham 

refused to take his seat, however, and became agitated. Soon, 

“a tussle ensued in the courtroom between [Basham] and the 

Marshals,” which lasted approximately eight minutes. Id. at 

 

procedural default rules), Medina v. Singletary, 59 F.3d 1095, 

1107 (11th Cir. 1995) (same), and Zapata v. Estelle, 588 F.2d 

1017, 1021 (5th Cir. 1979) (same). We weighed in on this issue 

in Smith v. Moore, 137 F.3d 808, 819 (4th Cir. 1998), concluding 

that “a claim of incompetency to stand trial asserted for the 

first time in a federal habeas petition is subject to procedural 

default.” Thus, the district court erred by failing to apply 

the procedural default rule to Basham’s substantive competency 

claim. We will nevertheless presume that Basham has not 

defaulted that claim.
44

1161. Six deputies sought to subdue Basham, but eight were 

ultimately required. Basham and the deputies maintained a 

dialogue during the tussle, with Basham cursing the officers, 

suggesting that one of them had lied in telling the court that 

he had thrown bodily fluids. Basham then told the court, prior 

to being escorted from the courtroom, “Judge, if I was going to 

spit, as mad as I am now, I would be spitting now. They just 

made that up.” Id. at 1164. 

Basham was then removed to his holding cell, and his 

lawyers requested a delay in the trial proceedings so that a 

psychiatrist could assess his competency. The district court 

granted that request, and Basham was evaluated that afternoon by 

forensic psychiatrist Donna Schwartz-Watts. Later that day, Dr. 

Watts testified that “[i]t is my opinion right now that because 

of his mental defect that [Basham] can’t assist his attorneys.” 

J.A. 1173. Dr. Watts stated that Basham’s “mental state 

fluctuates,” and opined that his competency would similarly 

fluctuate. Id. The court then adjourned the trial for the

balance of that day. 

Basham asserts in his § 2255 motion that he was not 

competent to stand trial during his scuffle with the deputy 

Marshals. Although the events of September 20, 2004, occurred 

outside the jury’s presence, the video and audio of the tussle 
45

were admitted into evidence during the trial’s penalty phase on

behalf of the prosecution to show future dangerousness. 

The district court denied Basham’s competency claim as to 

September 20, 2004, finding that he had not satisfied his 

burden, by a preponderance of the evidence, of showing that he 

was incompetent during the courtroom scuffle. In so ruling, the 

court recognized that certain evidence supported Basham’s

argument that he had been incompetent. For example, immediately 

following the scuffle, defense attorney Harris questioned

Basham’s competence and observed that he “[l]ooked like someone 

who didn’t have the ability to control the simple function of 

sitting down in a seat.” See J.A. 1168. Similarly, Dr. Watts 

opined that, based on her examination of Basham following the 

scuffle, he was not competent. See id. at 1173. 

On the other hand, the district court deemed Dr. Watts’s 

testimony unclear “as to whether she believed Basham was 

incompetent at the time of the altercation or whether she 

believed that he got worked up from the altercation and was 

incompetent as a result.” See Opinion 93 n.37. The prosecutors

also offered evidence that Basham had advised a deputy shortly 

before the incident that he would be “‘coming back down’” to his 

holding cell from the courtroom, possibly indicating “that 

Basham may have planned to act out in court.” Id. at 95

(quoting J.A. 1177). Additionally, the court related that
46

Basham made statements during the scuffle, prior to being taken 

from the courtroom, showing that he “apparently had the presence 

of mind to make a last-ditch argument as to why he should have 

been allowed [dip], even as he was being escorted out of the 

courtroom.” Id. Assessing all of the evidence, the court found

that Basham was not incompetent during the September 20 scuffle, 

and thus his “constitutional rights were not violated when the 

government later showed both videotape and audiotape of the 

altercation to the jury.” Id.

Basham maintains on appeal that the district court’s ruling

was clearly erroneous because the court misconstrued Basham’s 

statements prior to and during the September 20 scuffle, and 

because the court should have accorded greater weight to the 

opinions of Dr. Watts and lawyer Harris. We disagree, as the 

record amply supports the court’s findings. See Anderson, 470 

U.S. at 574 (“Where there are two permissible views of the 

evidence, the factfinder’s choice between them cannot be clearly 

erroneous.”). Basham’s statement prior to the scuffle that he 

would soon be returning to his holding cell supports a finding 

that he intended to act up in the courtroom, in that the court 

had previously denied Basham’s requests not to attend his trial. 

In light of that history, it is reasonable to infer that Basham 

would have known that he would not be permitted to return to his 

holding cell absent exigent circumstances. Basham’s statements 
47

to the court during the scuffle also support the court’s 

competency finding, because they show that Basham’s thinking was 

goal-oriented and motivated. His behavior might have been 

bizarre, volatile, or irrational, but that does not necessarily 

render a defendant incompetent. See Robinson, 404 F.3d at 858; 

Burket, 208 F.3d at 192; see also United States v. Lebron, 76 

F.3d 29, 32 (1st Cir. 1996) (“[I]rrational and outrageous 

behavior in the courtroom . . . may be uncontrolled, 

manipulative, or even theatrical. It is not determinative of 

competency.”).

Moreover, the evidence upon which Basham relies does not 

mandate a finding that he was incompetent during the September 

20 scuffle. For example, Dr. Watts’s testimony that Basham was 

incompetent when she examined him after the scuffle did not have 

to be accepted — even if unimpeached. See Maggio v. Fulford, 

462 U.S. 111, 117-18 (1983). Indeed, Watts’s opinion was

limited to Basham’s competency when she met with him following 

the scuffle. Although Basham suggests that it “defies reason” 

that he might have been competent during the scuffle and then 

incompetent a short while later, see Reply Br. 8, Watts 

testified that Basham’s mental state and competence 

“fluctuate[d],” see J.A. 1173. Similarly, Harris’s testimony 

does not mandate a finding that Basham was incompetent. Indeed, 

Swerling testified to the contrary at the § 2255 hearing, 
48

stating that Basham was not incompetent during the scuffle. See

id. at 4288-89.

In sum, the district court did not clearly err in finding 

that Basham was competent during the September 20 scuffle. As a 

result, Basham’s rights were not violated when the video and 

audio recordings of the scuffle were shown to the jury during 

the penalty phase.

b.

Next, Basham asserts that he was also incompetent on 

Tuesday, October 26, 2004, during the trial’s penalty phase. 

That morning, before the jury was brought into the courtroom, 

Harris informed the district court that Basham “is in a very 

agitated state this morning,” because he had not received one of 

his medications due to an error at the detention center where he

was housed overnight. See J.A. 1919. The court then granted 

Basham’s request to delay the trial until the afternoon, so that 

he could receive the missed dose of medication and allow for the

medication to take effect. When the court reconvened that 

afternoon, however, Harris expressed concern that Basham “is not 

going to be able to sit in the courtroom and pay attention to 

the testimony, remain silent. And I am concerned that . . . 

this jury will not look favorably upon the way he is appearing 

to me to be acting this afternoon.” Id. at 1927. The 

prosecution took the position that the trial should proceed, 
49

arguing that the defense lawyers had not contacted Dr. Watts to 

evaluate Basham that morning, and contending that, “if it is a 

medical problem,” she “should be here to testify about it.” Id.

at 1928. The following exchange then occurred: 

THE COURT: Mr. Harris, I have tried to bend over 

backwards to do everything possible to keep [Basham] 

on an even keel and a good frame of mind, and 

especially so that he won’t show out in front of the 

jury. But the jury is really worn out. They have 

sent signals indirectly to me. They really want to 

see this case move along. I think there is a danger 

to be balanced against what you say. These continued 

delays are going to be held against [Basham], I think. 

I think the jury will figure out that it is [Basham] 

that is causing these delays. So, I think I have got 

to weigh in the balance of that aspect of it, versus 

the danger of going forward with him appearing to be a 

little bit disheveled over there.

MR. HARRIS: Judge, I agree with all of those 

things. Those are dangers that we had weighed. And I 

will point out that as I am addressing the court right 

now, the record should reflect that my client is 

discussing over my shoulder, loud enough that I can 

hear, and certainly loud enough for the jury could 

[sic] hear, having discussions with Mr. Swerling about 

the fact that he will be good.

Id. at 1928-29. Despite Harris’s concerns, the trial

proceedings went forward that day. Later that afternoon, 

Basham’s counsel stated to the court that Basham was “slurring 

his words” and appeared to be “groggy and just out of it.” Id.

at 1936-37.

In his § 2255 motion, Basham claims that he was incompetent 

during the trial proceedings on the afternoon of October 26, 

2004. The district court rejected that contention, finding a 
50

lack of evidence supporting Basham’s assertion that he was 

incompetent. The court pointed out that Basham’s lawyers had 

expressed concern about Basham’s appearance, but offered no 

evidence going to competency. The record showed that Basham 

appeared disheveled and sleepy, but those behaviors were 

consistent with his conduct throughout the trial. See Opinion

96. The court further observed: “If there had been any 

indication that he was incompetent, the court would have sought 

the testimony of a doctor on Basham’s competency, as this court 

did on other occasions.” Id.

We are satisfied that the district court’s finding that 

Basham was competent during the proceedings on the afternoon of 

October 26 is not clearly erroneous. In arguing that the record 

compels a finding that he was incompetent, Basham relies on 

evidence that he was groggy and slurring his words. Those 

factors, however, do not necessarily render a defendant 

incompetent to stand trial. See Woods v. McBride, 430 F.3d 813, 

819 (7th Cir. 2005) (“[T]here is a big difference between the 

sort of temporary incompetence stemming from [medication]-

induced drowsiness during voir dire and the sort that would 

render [the accused] incapable of standing trial altogether.”). 

The finding that Basham was competent is further supported by 

the court’s observations of Basham — both that day and 

throughout the trial. The record demonstrates that the court 
51

was sensitive to Basham’s mental state throughout the trial 

proceedings, and made sustained efforts to ensure that his fair 

trial rights were protected. For example, during the morning of 

October 26, 2004, the court commented on the importance of 

ensuring that Basham receive his prescribed medication so that 

he could participate in his defense, anticipating that “if the 

defendant receives the death penalty, . . . there will be a 2255 

action” challenging his competency. See J.A. 7537. Given the 

court’s commendable motivation to ensure Basham’s competency, 

its decision to proceed with trial on the afternoon of October 

26 supports a finding that Basham was competent. See United

States v. Moussaoui, 591 F.3d 263, 294 (4th Cir. 2010) (noting 

that trial court’s interactions and experience with defendant 

over several years of proceedings was “compelling” factor 

supporting conclusion that defendant was competent). The 

court’s finding that Basham was competent during the afternoon 

of October 26 is thus well supported by the record. The court’s 

denial of Basham’s substantive competency claim must therefore 

be affirmed.

2.

Basham also argues that his defense lawyers were 

constitutionally ineffective with respect to his September 20 

and October 26, 2004 instances of alleged incompetency. More 

specifically, with respect to the September 20 scuffle, Basham 
52

contends that his lawyers acted deficiently — not on that day —

but when they failed to object on competency grounds to the 

admission of the video and audio footage during the penalty 

phase. As to the events of October 26, Basham maintains that 

his lawyers were constitutionally ineffective by failing to 

contact Dr. Watts and request that she examine Basham’s 

competency before the trial proceedings could be resumed.

The foregoing contentions against the defense attorneys

lack merit because Basham cannot satisfy Strickland’s prejudice 

requirement, which requires that he show “counsel’s errors were 

so serious as to deprive [him] of a fair trial, a trial whose 

result is reliable.” Strickland, 466 U.S. at 687. Put simply, 

Basham was competent during the September 20 and October 24 

incidents, foreclosing any suggestion that his trial was

rendered unfair by his lawyers’ decisions during those 

incidents. See Walton v. Angelone, 321 F.3d 442, 462 (4th Cir. 

2003) (ruling that, under Strickland, accused was not prejudiced 

by counsel’s failure to raise competency issue where record 

showed defendant had been competent); Beck v. Angelone, 261 F.3d 

377, 393 (4th Cir. 2001) (same).

C.

Basham next claims that his defense lawyers were 

constitutionally ineffective with regard to the evidence 

presented during the trial’s guilt phase about the crimes 
53

committed against Samantha Burns (the “Burns evidence”).11 The 

prosecution notified the defense during a pretrial hearing held 

on August 4, 2004, of its intention to use the Burns evidence 

during the guilt phase. The prosecution’s position was that the 

Burns evidence was intrinsic to the crimes on trial, in that 

Basham’s and Fulks’s crime spree constituted a single criminal 

episode. Basham’s lawyers — Swerling and Harris — raised no 

objections to the admissibility of the Burns evidence during the

pretrial hearings, though Swerling preserved the right to later 

object.

The Basham defense, however, did not file a motion in 

limine with respect to the Burns evidence as it was presented 

during the guilt phase. Swerling and Harris also declined the 

district court’s offer to give the jury a cautionary instruction

under Federal Rule of Evidence 404(b) with respect to that 

testimony. At the charge conference in the guilt phase, the 

court again inquired whether the jury should receive an

instruction limiting the purposes for which evidence of other 

acts — such as the Burns evidence — could be considered. 

 11 Basham pleaded guilty in 2005 in the Southern District of 

West Virginia to the offense of carjacking resulting in the 

death of Samantha Burns, and aiding or abetting that offense, 

and was sentenced to life imprisonment. See United States v. 

Basham, No. 3:03-00138-02 (S.D. W. Va. July 25, 2005), ECF Nos. 

105, 109.
54

Swerling objected to such an instruction, and alternatively 

requested that the court’s proposed instruction be modified to 

permit the jury to consider the evidence of other acts to either 

prove “or disprove” pertinent facts. See S.A. 24.12 The court 

overruled that objection, but incorporated the modification 

proposed by Swerling. The Burns evidence was not presented to 

the jury during the sentencing phase.

On direct appeal, Basham argued that the prosecution had 

impermissibly used the Burns evidence in its closing argument in 

the guilt phase to show propensity, contravening Rule 404(b). 

We found no plain error, concluding that the government had 

“tied [the Burns] evidence entirely to a discussion of Basham’s 

intent,” and therefore did not run afoul of Rule 404(b). See

Basham, 561 F.3d at 329-30.

Basham took a different tack on the Burns evidence in his

§ 2255 motion, maintaining that Swerling and Harris were 

constitutionally ineffective by not attempting to limit the 

scope and extent thereof. The district court rejected that

claim. First, the court recognized that the record is “unclear 

as to whether [the Burns evidence] was admitted as being 

intrinsic to the crimes charged, or was admitted for one of the 

 12 Our citation to “S.A. __” refers to the contents of the 

Supplemental Appendix filed by the government in this appeal. 
55

not-for-character purposes allowed under Rule 404(b).” See

Opinion 123 n.52. The court then relied on our decision 

rejecting Basham’s direct appeal as foreclosing any challenge 

that the Burns evidence was admissible to show intent. Id. at 

124. Additionally, given that “Basham’s primary, if not sole, 

defense in this case was that at the time he and Fulks kidnapped 

Alive Donovan, he (Basham) did not have the requisite intent,” 

the Burns evidence “was relevant to show intent.” Id. The 

court deemed the Burns evidence as probative to showing that 

Burns had not voluntarily disappeared. Nonetheless, the court 

found that one piece of the Burns evidence constituted 

impermissible victim impact testimony. Id. at 128-29. 

Specifically, Burns’s mother testified that Burns would never be 

able to move into the family’s new home. The court then 

reasoned, however, that any error with respect to that statement 

was harmless beyond a reasonable doubt. Id. at 129.

In response to Basham’s motion to alter or amend judgment, 

the district court clarified that Basham’s claim with respect to 

the Burns evidence failed on both prongs of Strickland. First, 

the court determined that Basham’s lawyers did not perform 

deficiently because their decisions on how to handle the Burns 

evidence were strategic. Predicated on the testimony of 

Swerling and Harris at the § 2255 hearing, the court found that 

they had both “concluded that the jury would probably find 
56

Basham guilty, thereby necessitating a penalty phase.” See

Reconsideration Order 6. Counsel therefore adopted “the 

recognized practice” of front-loading the emotionally charged 

Burns evidence into the guilt phase, so that it would not be 

“fresh in the minds of the jury as they deliberated on Basham’s 

sentence.” Id. at 6-7. Second, the court reasoned that the 

deficiencies alleged did not prejudice Basham because the Burns 

evidence would have been admitted even if his lawyers had

mounted the challenges he now maintains were required. Id. at 

5-6. To that end, the court noted that “any objection to the 

admissibility of [the Burns evidence] would have been 

overruled.” Id. at 6.

We agree that Basham’s claim fails Strickland scrutiny 

because he has not shown that his defense lawyers performed 

deficiently. Basham urges that competent counsel would have

pursued a number of avenues to exclude or limit the Burns 

evidence, such as arguing that the evidence was not intrinsic, 

was unfairly prejudicial, or was needlessly cumulative. To 

succeed on this ineffective assistance claim, of course, Basham 

“must overcome the presumption that, under the circumstances,” 

his lawyers’ handling of the Burns evidence “‘might be 

considered sound trial strategy.’” See Strickland, 466 U.S. at 

689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
57

Swerling and Harris each testified during the § 2255 

hearing that, as they prepared for trial, they believed Basham 

would be convicted of the charged offenses. Their overarching 

goal was to save Basham’s life and avoid a death sentence. In 

line with that goal, as Swerling explained, the defense chose to 

front-load certain evidence into the trial’s guilt phase. The 

lawyers purposely “let a lot of evidence come in in the guilt or 

innocence phase” in order to “desensitize” the jury “to what we 

knew was going to be coming in the penalty phase of the trial.” 

See J.A. 4410; see also Humphries v. Ozmint, 397 F.3d 206, 234 

(4th Cir. 2005) (“[I]t is well established that failure to 

object to inadmissible or objectionable material for tactical 

reasons can constitute objectively reasonable trial strategy 

under Strickland.”).

To rebut Swerling’s testimony about trial strategy, Basham 

points out that Swerling made no mention of a front-loading 

strategy at the § 2255 hearing until he returned from a lunch 

break. Even then, Basham notes, Swerling testified that he 

“probably” employed that strategy. See Br. of Appellant 59 

(quoting J.A. 4340). The district court credited Swerling’s

explanation, however, and the credibility determination warrants 

our deference. See United States v. Abu Ali, 528 F.3d 210, 232 

(4th Cir. 2008) (“We particularly defer to a district court’s 

credibility determinations, for it is the role of the district 
58

court to observe witnesses and weigh their credibility.” 

(internal quotation marks omitted)).

Basham’s position that his lawyers acted unreasonably by 

not challenging the Burns evidence under Rule 403 overlooks the 

probative value of that testimony. See Fed. R. Evid. 403 (“The 

court may exclude relevant evidence if its probative value is 

substantially outweighed by a danger of one or more of the 

following: unfair prejudice, confusing the issues, misleading 

the jury, undue delay, wasting time, or needlessly presenting 

cumulative evidence.”). Basham characterizes the probative 

value of the Burns evidence as “marginal,” see Br. of Appellant 

63, an assertion that is entirely inaccurate. During the guilt 

phase, Basham conceded his culpability to the offenses charged, 

except for the carjacking offense. On that charge, Basham 

disputed whether he had possessed the requisite “intent to cause 

death or serious bodily harm” when he and Fulks abducted 

Donovan. See 18 U.S.C. § 2119. To prove that intent element, 

the prosecution introduced the Burns evidence to show that Burns 

had neither voluntarily left home nor disappeared. Basham 

emphasizes that he had admitted Burns was dead in his opening 

argument, and further suggests that the prosecution could have 

used other evidence — such as testimony from the law enforcement 

officers who interviewed Burns’s family — to introduce the same 

information in a less emotional way. The prosecution, however,
59

is entitled to fashion its own case and present a continuing, 

logical story to satisfy its ultimate burden. See Old Chief v. 

United States, 519 U.S. 172, 189 (1997) (“[T]he accepted rule 

that the prosecution is entitled to prove its case free from any 

defendant’s option to stipulate the evidence away rests on good 

sense. A syllogism is not a story, and a naked proposition in a 

courtroom may be no match for the robust evidence that would be 

used to prove it.”). Therefore, it is unlikely that a Rule 403 

challenge would have been successful — particularly given the 

district court’s statement that any such objection would have 

been overruled.

Basham’s focus on the heartbreaking and emotional nature of 

the Burns evidence lends substantial credence to his lawyers’

strategy. The government had provided notice that the crimes 

against Samantha Burns would be presented as an aggravating 

factor justifying a death sentence. Swerling and Harris thus 

understood that, if the Burns evidence did not come in during 

the guilt phase, the prosecution would use it during the penalty 

phase. Although the Rules of Evidence do not apply in the

latter stage, an evidentiary restriction similar to Rule 403 is 

provided by statute: “information may be excluded if its 

probative value is outweighed by the danger of creating unfair 

prejudice, confusing the issues, or misleading the jury.” 18 

U.S.C. § 3593(c). The probative value of the Burns evidence 
60

would assuredly be high in the penalty phase, where the crimes 

against Burns were to be squarely at issue. Faced with the 

proposition that the Burns evidence would certainly be admitted 

at some point, Basham’s lawyers cannot be faulted for ripping 

off the proverbial Band-Aid. See Lundgren v. Mitchell, 440 F.3d 

754, 774 (6th Cir. 2006) (“[E]xperienced trial counsel learn 

that objections to each potentially objectionable event could 

actually act to their party’s detriment. Learned counsel . . .

use objections in a tactical manner.”).

As the Supreme Court has explained, “[t]here are countless 

ways to provide effective assistance in any given case. Even 

the best criminal defense attorneys would not defend a 

particular client in the same way.” Strickland, 466 U.S. at 

689. The tactical decisions made by Swerling and Harris with 

respect to the Burns evidence were logical and strategic. In 

the context of a capital case, those decisions could not be 

characterized as being outside of the wide range of professional 

norms, and thus were not constitutionally deficient. See

Florida v. Nixon, 543 U.S. 175, 191 (2004) (“Attorneys 

representing capital defendants face daunting challenges in 

developing trial strategies, not least because the defendant’s 

guilt is often clear. . . . In such cases, avoiding execution 

may be the best and only realistic result possible. Counsel 

therefore may reasonably decide to focus on the trial’s penalty 
61

phase, at which time counsel’s mission is to persuade the trier 

that his client’s life should be spared.” (alterations and 

internal quotation marks omitted)). In sum, we are satisfied

that Swerling and Harris did not render constitutionally

ineffective assistance when they decided to allow the Burns 

evidence to be admitted without objection during the guilt phase

of Basham’s trial.13

D.

Finally, Basham contends that he was denied the effective 

assistance of counsel because Swerling failed to deliver

Basham’s complete file to the lawyers who represented Basham in 

his direct appeal. Basham noticed his direct appeal on February 

17, 2005, and Swerling and Harris were appointed as his 

appellate lawyers the following week, on February 24, 2005. 

Thereafter, Swerling and Harris each were permitted to withdraw, 

on September 13, 2005, and August 14, 2007, respectively, and 

were replaced by lawyers from Jenner & Block, LLP. Timothy 

Sullivan was designated lead appellate counsel, although co-

 13 Although we need only decide that Basham’s claim fails at 

Strickland’s deficiency prong, that claim would similarly fail 

at the prejudice prong. The district court gave the jury a 

cautionary instruction during the charge in the guilt phase, 

limiting the purposes for which the jury could consider the 

Burns evidence. Moreover, the court emphasized in its 

Reconsideration Order that “any objection to the admissibility 

of [the Burns evidence] would have been overruled.” See

Reconsideration Order 6.
62

counsel Melissa Meister worked extensively on Basham’s appeal 

and coordinated a team of associates.

Basham’s appellate lawyers from Jenner & Block began 

requesting records from Swerling in January 2008. Sullivan 

requested, by letter of January 14, 2008, that Swerling “either 

provide me with a complete ‘master set’ [of Basham’s files, 

pleadings, and records] or, alternatively, provide access to the 

‘master set’ so it can be inspected and copied.” See J.A. 7065. 

Also on January 14, 2008, the district court ordered “the clerk 

of court to provide [Basham’s appellate lawyers] access to all 

documents which are reflected in the docket as sealed or 

otherwise restricted.” Id. at 7066. On February 12, 2008, our

briefing order was amended, extending the deadline for Basham’s

opening brief by sixty days, from February 29 to April 29, 2008. 

Meister made several requests during February and March 2008

that Swerling send Basham’s file to Jenner & Block in 

Washington, D.C. Swerling, however, insisted on retaining 

physical possession of the file. Meister then travelled to 

Swerling’s office in South Carolina on April 3, 2008, spent the 

afternoon reviewing the file, and had copies made of about two 

boxes of documents. On April 23, 2008, the deadline for 

Basham’s opening brief was again extended, this time to May 13, 

2008.
63

The district court rejected Basham’s claim that Swerling’s 

refusal to surrender possession of the file constituted 

constitutionally ineffective assistance, determining that the 

claim failed at both prongs of Strickland. First, as to 

deficient performance, the court found that Basham’s appellate 

lawyers had reasonable access to his trial files. See Opinion 

192-93. Although Swerling insisted on retaining the physical 

file, the court found that “when appellate counsel wanted access 

[to the file], they were given it, and Swerling did not deny 

them access to any document requested.” Id. at 192. The court 

further noted that “Swerling assisted appellate counsel 

throughout the month of May 2008 in preparing and filing the 

opening appeal brief.” Id. Because Swerling had provided the 

appeals team with reasonable access to Basham’s file, the court 

determined that Swerling did not perform deficiently. Id. at 

193. Similarly, although Basham’s appellate lawyers’ “task 

would have been easier had they had the entire file in their 

possession,” the court reasoned that those lawyers did not 

perform deficiently because they “could obtain many documents 

from the court’s docket, had access to the entire physical file, 

and were allowed to copy what they wished therefrom.” Id.

Second, and in the alternative, the district court ruled 

that, even if Basham’s lawyers had performed deficiently, his 

claim failed under Strickland’s prejudice prong. See Opinion
64

193-94. The court emphasized that Basham had not identified any 

particular argument that appellate counsel failed to raise 

because Swerling retained the physical file. And, although 

Basham contended that his lawyers might have raised some of the 

ineffective assistance claims on direct appeal that he raised in 

his § 2255 motion, the court explained that “appellate counsel 

were not ineffective in failing to raise the issues Basham 

identifies.” Id. at 193. The court further relied on Meister’s 

testimony that she received sufficient access to Basham’s file

and that “there were no claims appellate counsel could not have 

raised because of Swerling’s behavior.” Id. at 193-94. Thus, 

the court concluded that Basham could not have been prejudiced 

by any deficiency relating to his file.

On appeal, Basham reiterates his argument that “[i]n 

denying appellate counsel unfettered access” to the “thousands 

of trial-related documents in his possession,” Swerling had 

“compromised Basham’s appeal to an unknowable extent.” See Br. 

of Appellant 74. To show that Swerling performed deficiently, 

Basham relies on legal authority requiring a lawyer to deliver a 

client’s file to the client upon the termination of 

representation. See id. at 80-81 (citing Restatement (Third) of 

the Law Governing Lawyers § 46(3) (2000) (requiring that “a 

lawyer must deliver to [his] client or former client, at an 

appropriate time and in any event promptly after the 
65

representation ends, such originals and copies of other 

documents possessed by the lawyer relating to the representation 

as the client or former client reasonably needs”); S.C. Rules of 

Prof’l Conduct 1.16(d) (“Upon termination of representation, a 

lawyer shall take steps to the extent reasonably practicable to 

protect a client’s interests, such as . . . surrendering papers 

and property to which the client is entitled . . . .”)). Basham 

further disputes the court’s finding that appellate counsel had 

reasonable access to the trial file, maintaining that “Meister’s 

single day with the file” cannot constitute reasonable access 

“in light of the nature” of this capital case. Id. at 85.

We are satisfied to affirm the district court’s ruling that 

Basham cannot demonstrate prejudice. Basham’s prejudice 

argument relies on the “numerous claims of ineffective 

assistance of appellate counsel,” as well as the competency 

claims that he raised in his § 2255 motion. See Br. of 

Appellant 86. That contention, of course, is entirely undercut 

by the fact that Basham has not advanced a meritorious claim in 

his § 2255 motion.

Finally, the record demonstrates that Basham’s appellate 

lawyers made deliberate and considered decisions in selecting 

which claims to pursue. Meister confirmed at the § 2255 hearing 

that the appellate team strategized on what issues to appeal in 

order to “present the best brief possible” with the “most 
66

likelihood” of affording Basham relief. See J.A. 3827-28. As a 

result, Basham cannot show a reasonable probability that the 

result of the proceedings would have been different, “sufficient 

to undermine confidence in the outcome” of his direct appeal. 

See Strickland, 466 U.S. at 694. Therefore, we also affirm the 

ruling of the district court on this ineffective assistance

claim.14

IV.

Pursuant to the foregoing, we affirm the judgment of the

district court.

AFFIRMED

 14 Because we resolve this ineffective assistance claim 

under Strickland’s prejudice prong, it is unnecessary to decide 

whether Swerling’s failure to deliver Basham’s file to his 

appellate lawyers constituted deficient performance.